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NEW ZEALAND LAW SOCIETY LEGAL EXECUTIVE DIPLOMA LITIGATION LAW AND PRACTICE Term 2, Week 3 Revision of Chapter 3.

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Presentation on theme: "NEW ZEALAND LAW SOCIETY LEGAL EXECUTIVE DIPLOMA LITIGATION LAW AND PRACTICE Term 2, Week 3 Revision of Chapter 3."— Presentation transcript:

1 NEW ZEALAND LAW SOCIETY LEGAL EXECUTIVE DIPLOMA LITIGATION LAW AND PRACTICE Term 2, Week 3 Revision of Chapter 3

2 Civil Union Act 2003 Provides way for two people to solemnise their relationship Applies to same-sex and opposite sex couples Need to be over 16 or have guardians written consent Cannot be in prohibited degrees of relationship Cannot currently be married or in civil union with someone else (except marriage -> civil union)

3 Family Court Procedure Make parties/children feel at ease Usual Court rules and procedure simplified/relaxed/more informal Duty on lawyers to promote reconciliation and where that is not possible, conciliation Counselling (relationship and parenting) and mediation available Can refuse to attend counselling where there has been domestic violence Mediation now predominantly non-Judge lead = quicker to get one allocated, cheaper, frees up judicial time

4 Dissolution Only ground = irreconcilable breakdown of relationship as evidenced by 2 years living apart Demonstrate by separation agreement, separation order or other evidence (affidavit) Permitted 3 month reconciliation period within the 2 years

5 Separation Agreement May record: – Date of separation – Maintenance for former spouse/partner and any children – Care and contact arrangements – Division of relationship property Quick, relatively cheap and involves “buy-in” so more likely to be complied with

6 Separation Order Involves an application to Court Documents required: – Notice of Application for Separation Order – Notice to Respondent – Affidavit in Support – Family Court Information Sheet Need to show a state of disharmony such that it would be unreasonable to require parties to continue living together

7 Dissolution Can be a joint or unilateral application One party must be domiciled in NZ Different forms for each type of application Documents required: – Application for Order for Dissolution – Affidavit in Support (attach certified copy of marriage certificate) – Family Court Information Sheet File the originals and a service copy with the Court, pay the filing fee and note the hearing date

8 Dissolution continued For unilateral applications only, uplift the service copy, photocopy the Notice to Respondent (to attach to the Affidavit of Service) and arrange for service Must serve at least 21 days before hearing date (to enable sufficient time to file a defence if desired) Ideal but rarely practicable to get respondent to sign Acknowledgement of Service Alternatively prepare Affidavit of Service Private hearing Order for dissolution See flowchart on page 55

9 Substituted Service Used where documents have not been able to be personally served after reasonable efforts/enquiries Documents required: – Application for Order for Substituted Service – Affidavit in Support – Draft Order for Substituted Service File the documents, receive directions from Court and attempt service again Service may be authorised on family member, friend or via advertisement in newspaper (Facebook?) Court may dispense with service in extreme cases

10 Property (Relationships) Act 1976 Sets out rules for division of property whether married, civil union or de facto Each partner has equal status Non-financial contributions same value as financial ones Equal contribution to relationship so equal share of property Fault by either party is irrelevant unless extreme circumstances Resolve issues as quickly, cheaply and simply as is consistent with justice

11 PRA 1976 continued “Relationship property” = property brought into or acquired during the relationship, ie family home, family chattels, debts, insurance, superannuation, intermingled gifts and inheritances Separate property = separate property but may have to be divided if other parties’ efforts contributed to increase in value

12 PRA 1976 continued In general you take out what you put in to a de facto relationship of less than 3 years duration (unless child of relationship or one party made substantial contribution) Court can depart from presumption of equal sharing if there are extraordinary circumstances which would make that repugnant to justice Court can order lump sum payment to address economic disparity in income and living standards Court will look at likely earning capacity of each party and any childcare responsibilities

13 PRA 1976 continued If partner dies, surviving spouse/civil union partner can choose whether to take under PRA rules or under will/intestacy provisions Can contract out of the default provisions of the PRA (section 21 agreement) but must be in writing and both parties must have independent legal advice Documents required: – Notice of Application for Order under PRA – Affidavit of Assets and Liabilities – Affidavit in Support – Family Court Information Sheet – Affidavit of Service

14 Next Week Revision of remainder of Chapter 3 and also 4


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